US Supreme Court appeal possible in Boston College IRA case

US Supreme Court appeal possible in Boston College IRA caseLawyers say they fear for safety of two researchers who did interviews
By NIALL O’DOWD, FounderIrishCentral.com
Published Sunday, July 8, 2012,

The Boston College legal decision which orders the college to hand over tapes of interviews of IRA members to the US Justice Department and British authorities could be appealed to the US Supreme Court.

A top legal expert told Irishcentral.com that he “wouldn’t be surprised if they sought leave to appeal to the US Supreme Court … It is possible that if this case makes it to the Supreme Court they might carve out an exception for scholar research.”

He said such an appeal would delay the court ruling.

The appeals court confirmed an earlier court verdict that the tapes, made at Boston College between 2001 and 2006 with leading IRA and Loyalist figures had to be handed over. Participants had been told by the researchers that their testimonies would be secret until they passed away.

Ed Moloney, one of the researchers, released the book “Voices from the Grave” containing the testimony of two men, IRA commander Brendan Hughes and former Loyalist paramilitary David Ervine, who did the interviews and later died which led to the British demand for disclosure of all the tapes.

A Supreme Court challenge to carve out an exception could succeed the legal expert stated. However, he pointed out that the Supreme Court rarely overturned verdicts from the Boston appeals circuit. “They rarely reverse Court of Appeals decisions and reversal of the 1st Circuit – Boston is rarer still.”

The expert also pointed to the dissent in the case by Judge Juan R. Torruella who “reluctantly” concurred in the judgment.

Torruella wrote “It is one thing to say that the high court has considered competing interests and determined that information gatherers (here, academic researchers) may not refuse to turn over material they acquired upon a premise of confidentiality when these are requested via government subpoena in criminal proceedings,” he commented.

“It is entirely another to eagerly fail to recognize that the First Amendment affords the Appellants ‘a measure of protection … in order not to undermine their ability to gather and disseminate information.

“In his opinion he seems to say he disagrees with the judgment but must concur in light of an earlier US Supreme Court case.” Chief Judge Sandra Lynch stated the researchers could not claim that they had specific rights under her reading of a legal treaty between the United States and the United Kingdom.

She also stated that the U.S. Supreme Court ruled in its 1972 “Branzburg v. Hayes” decision that journalists do not have the right to refuse subpoenas based on their own promises of confidentiality.

“As in Branzburg, there is no reason to create such a privilege here,” Lynch wrote. “The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.”

Meanwhile lawyers for the two researchers, Ed Moloney and Anthony McIntyre say they fear for their safety. “We’re very disappointed,” James Cotter III, one of Moloney and McIntyre’s lawyers told the Boston Globe. “And I’m disappointed personally for our clients, who have been through quite a bit.”

Cotter also expressed worry for the safety of Moloney and McIntyre. “That’s the real concern for us,” he said.

Eamonn Dornan, another lawyer claimed the IRA could view ­Moloney and McIntyre as informers and target them and their families for violence.

Dornan also stated the release of the interviews would have a chilling effect on future academic research in the ­United States.

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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